Newland v. Hudson River Water-Power & Paper Co.

The main question upon the trial was whether the defendant’s dam did injuriously affect the plaintiffs’ water privilege. The learned trial court, as we learn from the opinion, was satisfied that since the erection of the defendant’s dam the plaintiffs’ water privilege has been injuriously affected by back-water. The testimony in support of this contention is practically uncontradicted, and amply justifies the statement of the learned judge that “since the erection of defendant’s dam, in 1882 or 1883, there has been some increase in the depth of the water at plaintiffs’ mills.” This increase appears to have been constant, and its effect was to impair the efficiency of plaintiffs’ water-power and mills. But the trial court found that the plaintiffs had not shown that this increased depth of water was caused by defendant’s dam. Expert witnesses on the part of the defendant testified that it was an “hydraulic impossibility” for it to be so caused. Expert witnesses on the part of the plaintiffs did not specifically testify to the contrary opinion. They testified that they discovered no other cause than the defendant’s dam, and, in substance, that this case demonstrated itself, since the rise of the water followed the erection of the dam so closely as to be convincing that the dam was the cause. The conclusion of the trial court has the support of the testimony of defendant’s experts, and we cannot demonstrate that it is erroneous. It is easy to assume certain propositions respecting the slack water *656in the defendant’s dam acting as an obstruction to the flow of the water from above; as that the retardation of the flowing volume by the slack water at the point of impact causes the flowing volume to flow more slowly immediately above that point, and that the retarded current itself becomes at every point up the stream a new obstruction, retarding the flow above it; and that, this continuing to the plaintiffs’ tail-race, would cause the obstruction there. Now, conceding that under certain conditions the phenomenon called the “piling” of water in a flowing stream exists, the conditions which would produce such a result are not so definitely and clearly understood as to enable the judge or juror, in the absence of assistance from expert testimony, to decide correctly respecting its existence or non-existence in a case like this. It may be that the knowledge of the so-called “experts” upon the subject cannot be greatly relied upon when they pass from theoretical propositions to their concrete application. Be this as it may, the burden rested upon the plaintiffs to prove their case, and that required them to show that the defendant’s dam was the cause of the back-water at the tail-race of their mills. This they did not do, and hence the judgment must be affirmed. Judgment affirmed, with costs.

Learned, P. J., concurs.

(concurring.) I see no sufficient reason for granting a new trial in this case. The plaintiffs, to recover, must establish by proof that their rights have been injuriously affected by the construction of the defendant’s dam. • This proposition the trial court held that they had failed to maintain. The only evidence on the part of the plaintiffs which is claimed to establish it is the fact that immediately after the construction of the defendant’s dam the water rose at the plaintiffs’ lower mill. The reason for this is not explained in the evidence. The undisputed evidence is that the difference between the height of the surface of the water at the tail-race of the plaintiffs’ lower' mill and at the top of the defendant’s dam was about 12J feet. The distance between the dams is about 12,000 feet, and defendant’s dam is about 945 feet long, and the depth of the water as it passes over its. top varies from 5 inches to 5 feet. There is therefore a difference in height at the time of highest water of 7|- feet. There is a substantial agreement"of all the witnesses as to the distance between the dams, and the fall from plaintiffs’ to the defendant’s in the river-bed; and no witness has undertaken to swear that water would pile up so as to rise above its common level sufficiently to overcome this 7J feet elevation of plaintiffs’ tail-race above the top of the water at highest flood on defendant’s dam. To hold that the water from the defendant’s dam, upon these facts, could set back so as to interfere with the free flow of water at the tail-race of the plaintiffs’ lower mill would seem to reverse all well-known principles governing hydraulics. If the physical facts upon which this case must turn could be changed by further testimony, then there might be some reason for granting a new trial. But the elevations at the different points have been ascertained, and there is no dispute about them. They cannot be altered on a new trial. The natural laws governing the flow of water are quite as unchangeable, and with these material and controlling factors in this case the same result must follow on a new trial as has already been reached by the trial court. It is true that no explanation has been furnished for the somewhat remarkable coincidence of the rise of the water at the tail-race of the plaintiffs’ mill at the time of the erection of the defendant’s dam, but, unless it is traceable to some natural cause connected with and arising out of the erection of the defendant’s dam, we cannot assume, as against well-understood physical laws governing matter, that it was produced by water setting back from this dam. At all events, the burden is upon the plaintiffs to establish that proposition if true, which they *657have failed to do. There is no claim on this appeal that a new trial should be granted on the ground of the newly-discovered evidence. 1 think, therefore, that the judgment should be affirmed. Judgment affirmed, with costs.